February 2019

February 2019 - International Criminal Court (ICC) Update

BY ISABELLA BANKS, RESEARCH ASSOCIATE PILPG-NL

IN THE PAST MONTH, THE INTERNATIONAL CRIMINAL COURT (ICC) RELEASED UPDATES ON THE CONDITIONAL RELEASE OF MR. GBAGBO AND MR. BLÉ GOUDÉ, THE ICC PROSECUTOR’S PARTICIPATION ON THE MUNICH SECURITY CONFERENCE, AND THE LAUNCH OF THE INTERNATIONAL GENDER CHAMPION NETWORK’S NEW HUB IN THE HAGUE.

ICC Appeals Chamber to Impose Conditions on Laurent Gbagbo and Charles Blé Goudé Upon Their Release Following Their Acquittal

On February 1, 2019, the ICC Appeals Chamber announced its unanimous decision to impose conditions on the release of Mr. Gbagbo and Mr. Blé Goudé to a state (or states) willing to accept them and enforce these conditions. According to the ICC Press Release, the purpose of the imposed conditions is to “protect the integrity of the process.” The Appeals Chamber instructed ICC Registrar Peter Lewis to identify and enter into agreements with said state (or states) and make the necessary interim arrangements.

 This announcement came in the wake of the Trial Chamber I’s controversial decision in mid-January to grant the defense’s “no case to answer” motion to acquit Mr. Gbagbo and Mr. Blé Goudé from all charges. Trial Chamber I initially found that there were no exceptional circumstances preventing the release of Mr. Gbagbo and Mr. Blé Goudé from ICC detention following their acquittal.  The ICC Prosecutor appealed this decision, warning that the two men presented flight risks and that “their unconditional release might impact victims’ safety.”

 The acquittal – which came after a three-year trial relating to post-electoral violence in Cote d’Ivoire between 2010 and 2011 – prompted a wide range of reactions from ICC commentators. Some called it a serious “blow” for the Court that “rattles ICC foundations” while others argued that “the fairness of any criminal justice system must be judged by acquittals and not by convictions.” Regardless of whether or not this most recent acquittal reflects inadequacies of the Office of the Prosecutor, few dispute that the decision and the sensational publicity around it hurt the Court’s credibility. Dutch speakers can watch PILPG NL Director Marieke de Hoon’s comments on the decision on NPO Radio 1 here.

Statement of the ICC Prosecutor Following the Conditional Release of Mr. Gbagbo and Mr. Blé Goudé 

Following the Feburary 1 decision of the Appeals Chamber, ICC Prosecutor stated that it was amenable to release with a set of conditions, the purpose of which was to ensure that Mr. Gbagbo and Mr. Blé Goudé would be available before Court should the trial proceedings against them continue.

The ICC Prosecutor further noted that it would await a written decision by the Judges of Trial Chamber I detailing the legal reasons for the January 15 acquittal before deciding whether or not to exercise its right to appeal.

ICC Hosts Launch of International Gender Champions Network’s “Den Haag Hub”

On February 5, 2019, the ICC hosted the launch of the International Gender Champions  (IGC) Network’s new hub – an event organized by the Embassies of Canada and Switzerland to the Netherlands. The International Gender Champions is a leadership network that “brings together female and male decision-makers to break down gender barriers” and consists of over 200 active Champions worldwide. The purpose of the launch event was to discuss how Gender Champions and other advocates could put their commitment to gender equality into action in The Hague. The hub itself is intended to promote gender equality across organizations in The Hague and facilitate coordination with the IGC’s other chapters in Geneva, New York, Vienna, and Nairobi.

Last year, ICC President Chile Eboe-Osuji, ICC Prosecutor Fatou Bensouda, and ICC Registrar Peter Lewis each joined the ICG leadership network and vowed to take concrete measures to strengthen gender equality within their respective organs at the Court. All three spoke at the February 5 launch event. As part of a panel discussion, Prosecutor Bensouda stated, “Equality for women is progress for all. Achieving gender parity is a collective responsibility.”  

ICC Prosecutor Participates in the Munich Security Conference

From February 15-17, 2019, ICC Prosecutor Fatou Bensouda attended Germany’s 55th Munich Security Conference. The purpose of the annual event is to “build trust and contribute to the peaceful resolution of conflicts by sustaining a continuous, curated, and informal dialogue within the international security community.” Prosecutor Bensouda’s attendance was intended to bring attention to accountability for atrocity crimes and build support for her Office.

In her statements at the conference, the ICC Prosecutor called for greater support for “institutions created to ensure a rules-based global order and accountability” and highlighted her Office’s preliminary investigation work, which have helped catalyze national proceedings in select states. Prosecutor Bensouda also participated in a solutions-oriented side event organized by the Aurora Humanitarian Initiative, a non-profit organization founded on behalf of survivors of the Armenian Genocide. 

Throughout the conference, Prosecutor Bensouda met with senior officials from a number of states, regional and international organizations, and civil society. Controversially among them was Rwandan President Paul Kagame, a known critic of the ICC. A photo of the pair shaking hands sparked a vigorous debate about the dissemination of photos of meetings between the ICC Prosecutor and world leaders on Mark Kersten’s blog, Justice in Conflict.

International Criminal Liability in the Age of Social Media: Facebook's Role in Myanmar

By: Isabella Banks, Research Associate, PILPG-NL

The New York Times reported disturbing details of a systematic campaign led by Myanmar’s military elite to use Facebook’s broad reach to incite violence against the Rohingya. Through fake accounts and celebrity pages, the military disseminated anti-Rohingya propaganda, fake news, and inflammatory photos to millions of followers. As many as 700 people were involved in spreading this content to users across the country.

Criminal liability in international law is unique from that of most national legal systems in that it extends to those physically distant from the crime. International law’s expanded notions of criminal liability and commission are what have made it possible for justice institutions – first the Nuremberg International Military Tribunal (IMT) in 1945 and now the International Criminal Court (ICC) – to hold high-level perpetrators who order, plan, coordinate, or facilitate mass atrocities from afar accountable for their actions.

A question that international legal authorities have largely left unanswered is how this expanded notion of criminal liability might be applied in the age of global online networks and in particular, social media. There is mounting evidence that in addition to helping us stay connected and “bring the world closer together,” social media platforms are being used to proliferate ideas that result in real-world violence. 

A recent study conducted in Germany found that anti-refugee hate speech on Facebook predicted violent crimes against refugees in municipalities with above average usage of the platform. The researchers took advantage of sporadic internet outages to test the causality of the relationship, and confirmed that when “internet access went down in an area with high Facebook use, attacks on refugees dropped significantly.” Other research suggests that this may be because posts that trigger strong, negative emotions are favored by the platform’s newsfeed algorithm, which aims to maximize user engagement.

Facebook’s newsfeed algorithm is particularly vulnerable to misuse and manipulation in transitional countries like Myanmar, where democratic institutions are weak, social trust is low, and Facebook is the only website that many people access. Over the past year, Facebook has been criticized repeatedly for exacerbating the ongoing genocide against the country’s Rohingya ethnic minority by failing to contain the spread of hate speech and disinformation on its platform.

The New York Times reported disturbing details of a systematic campaign led by Myanmar’s military elite to use Facebook’s broad reach to incite violence against the Rohingya. Through fake accounts and celebrity pages, the military disseminated anti-Rohingya propaganda, fake news, and inflammatory photos to millions of followers. As many as 700 people were involved in spreading this content to users across the country.

The military’s Facebook campaign was launched five years ago – approximately the same time that human rights violations against the Rohingya are reported to have worsened. A recent report published by the Public International Law & Policy Group (PILPG) documenting atrocity crimes committed in Myanmar’s Rhakine State found that while many patterns of abuse stretch back for decades, “the period of the most consistent persecution and escalating violence against the Rohingya began in 2012 and steadily intensified through the major attacks that began in August 2017.”

By the time Facebook announced its decision to remove 20 accounts linked to military and spiritual leaders that had “enabled serious human rights abuses” in August 2018, a Reuters investigation had documented over 100,000 anti-Rohingya Facebook posts and 700,000 Rohingya had fled across the border to Bangladesh. 

Inside Myanmar, Facebook’s announcement was met with widespread outrage and largely overshadowed the news of a United Nations report highlighting the massacre of at least 10,000 Rohingya, which had been released the day before. One government spokesman went so far as to say, “We have called Facebook to ask why they have done this…we worry that this action will have an impact on national reconciliation.” 

For others, Facebook’s response came too late. As early as 2013, Myanmar experts began meeting with Facebook to warn them that activity on the platform was fueling attacks on the Rohingya. In a presentation at the company’s headquarters, one Myanmar-based entrepreneur likened Facebook’s role in Myanmar to that of extremist anti-Tutsi radio broadcasts that propelled the Rwandan genocide. 

In March 2018, the chairman of the UN Independent International Fact-Finding Mission on Myanmar stated that social media had “substantively contributed to the level of acrimony and dissension and conflict” in Myanmar. The following month, civil society groups published an open letter criticizing Facebook CEO Mark Zuckerberg’s characterization of Facebook’s hate speech “detection systems” as effective in the aftermath of an incident that resulted in three violent attacks. The letter highlighted Facebook’s overreliance on third parties to flag dangerous content and its failure to implement a mechanism for emergency escalation. 

The ICC’s recent decision to open a preliminary investigation concerning the mass deportation of the Rohingya to Bangladesh represents a potential opportunity to prosecute perpetrators of international crimes in Myanmar. This raises important questions: How and to what extent should top Facebook officials be held responsible for their avoidance and mismanagement of an emerging crisis? Do the company’s stated concerns about infringing upon the free speech of its users justify its inaction? On what legal basis might the military leaders who exploited Facebook to incite violence against the Rohingya be prosecuted?

In a 2003 case before the International Criminal Tribunal of Rwanda (ICTR), Prosecutor vs. Nahimana, Barayagwiza and Ngeze, three founders of extremist media outlets were convicted of direct and public incitement to commit genocide for orchestrating a propaganda campaign intended to desensitize the Hutu population and encourage them to kill Tutsis. In 2007, the Appeals Chamber reversed several aspects of the Trial Chamber's judgement on the grounds that: 1) it was inappropriate to apply international human rights law on hate speech to genocide crimes; and 2) direct and public incitement to commit genocide was not a continuous crime. In so doing, the Appeals Chamber drew a clear distinction between hate speech and international crimes, and made it difficult to hold individuals who publicly foment hatred over a long period of time accountable for violence that may result from their actions. 

The outcome of the ICTR’s so-called “Media case” suggests that the prosecution of the military leaders responsible for the anti-Rohingya Facebook campaign will constitute a significant legal challenge in itself. Still, the question of Facebook’s responsibility towards the countries it operates in – particularly those in transition – remains.

Zuckerberg himself has acknowledged: “In a lot of ways, Facebook is more like a government than a traditional company. We have this large community of people, and more than other technology companies we’re really setting policies.” Given that international law exists in large part to ensure that governments fulfill their “responsibility to protect” their own people, it seems likely that international legal authorities will need to further adapt criminal liability to account for the outsized influence of social media companies.

Informal Consultations on the Omnibus Resolution 3

Overview by Abby Roberts, Research Associate PILPG NL

Highlights: 

• Clauses 104, 119, and 91ter were agreed upon which was a testament to the cooperation of this body.

• The divide between Latin America and Eastern Europe was even more prominent in this session and this came to a head with no consensus reached on the clause on equitable geographical distribution within the Bureau. 

• The Secretariat is looking into venue options for or rescheduling of the next ASP in 2019.

On the sixth day of the ASP, the informal consultations on the omnibus resolution continued for a final time. The first clause discussed was the new operative clause placed after PP29 and it was noted that the body had come to a consensus on the phrasing and structure of this clause. 

Next under discussion was operative clause 91bis, relating to Brazils proposal for a clause on equitable geographical representation in the Bureau. Brazil spoke first on this topic and opened by noting that the Eastern European group had concerns with the timing and degree of institutionalization of Brazil’s original proposal. Brazil, in its search for consensus, decided on the wording in the draft resolution. Brazil closed its speech by expressing its belief that no country is in essence opposed to equal representation, and therefore Brazil expected agreement on this clause. Japan, Uganda, and numerous Latin American states expressed their willingness to support the proposal by Brazil. Despite Brazil’s hopes, the Eastern European group expressed their disagreement with the clause. Slovakia noted it did not address their main concerns and will not really alleviate any prominent issues, and suggested that more time is necessary to discuss the clause. Slovenia also suggested more discussion and believed that there was no need to raise this particular point in the omnibus resolution as it can be raised by members of the bureau at any point. Bulgaria and Croatia were not in support of the proposal because it had a preemptive element. The Netherlands expressed its support for the views of the Eastern European group and added that it does not see to what extent a requirement for a written report would add anything as it already can be requested. This clause was left to be discussed at a later point. 

The next clause discussed was 91ter. Germany withdrew its suggested edit which shortened the length of the ASP. Belgium had concerns with regards to this clause but was willing to go along with it in the spirit of consensus. The Czech Republic requested that the words “and frequency” be removed. A consensus was reached on this clause with the Czech Republic’s suggested edit. 

Operative clause 104 was agreed upon. Operative clause 119 was agreed upon, pending the passage of the amendment to rule 26 of the Rules of Procedure and Evidence.

Mandate 19(b) regarding the timing of the next ASP was then put up for discussion. Finland asked if there was any possibility to change the date of it or choose a different venue to facilitate a change in date. The Secretariat responded that they are looking into other venue options or rescheduling, but this will take more time. The Coordinator suggested a clause that requests the Secretariat to present options for scheduling the next session of the assembly and requests the bureau decide on the date of the 18th session. This version of the clause was agreed upon. The meeting was then convened for 45 minutes for discussion, which left 10 minutes in the session to resolve all remaining issues.  

Brazil was the first to speak in this last part of the session and suggested the following as the new proposed text of clause 91bis: “Recalling article 112 3(b) of the Rome Statute of the ICC, request the bureau to promote adequate discussions with a view to addressing the issue of equitable geographic representation within its structure”. Slovenia noted that this discussion was supposed to be an exercise in consensus, but they were only faced with the proposal 10 minutes ago and that this is not acceptable to them. They suggested just recalling articles 112 3(a) and (b) and encouraging the bureau to remain seized on this matter. Slovakia was in agreement with Slovenia regarding Brazil’s proposal as they thought it gave a sense of urgency that they do not believe exists and they were uncertain as to what “promoting adequate discussion” means. Macedonia agreed with Slovakia and Slovenia and noted that it seems they have a different starting point when it comes to this topic, as Eastern Europe feels there is adequate representation within the Bureau. Brazil responded by saying that they think the representation needs to be addressed and discussed, as the membership in the ICC went up and they need to address the new demographic or at least have a discussion about the new demographic so the bureau is representative. To try and find a middle ground, the Republic of Korea suggested the phrasing “calls upon the bureau to consider where possible the future composition of the bureau in light of article 112 of the Rome Statute”. Serbia and the Czech Republic were hesitant regarding this proposal and Brazil wanted more time to think about the phrasing of Korea’s proposal. With two minutes left, Austria gave a speech urging flexibility in phrasing and Brazil finally stated that if language that is not agreeable cannot be even considered then they will never have new language in the resolution.  

This session ended without consensus to 91bis. 

Informal Consultations on the Omnibus Resolution 2

Overview by Phedra Neel, Research Associate PILPG NL

Highlights:

• States Parties remained to disagree on Brazil’s proposed text on equitable geographical representation within the Bureau. 

• Discussion on the duration and date of the next ASP continued. 

• The session ran longer in order to attain a request for an amendment on a paragraph that was already agreed upon in previous sessions.

The consultations on the Omnibus Resolution reconvened on the fifth day of the ASP to finalize the discussions on the omnibus resolution by building onto revisions proposed during previous sessions. 

The first paragraph addressed was the new operational paragraph, which faced issues with its wording. Austria, Chile, Argentina and Greece supported the new operative clause. Korea on the other hand showed concerned with the formulation of this clause and additionally with the structure of the draft resolution, requesting a separate heading. Austria suggested that this can be solved by leaving enough space between this clause and the operative clauses. This clause was eventually agreed upon.

Paragraphs 9bis to 9quater were next. There was an alternative pending for these paragraphs existing of OP139 as proposed by Liechtenstein. As a reaction to previous concerns that OP9bis, ter and quarter were repetitive, France proposed an alternative OP that contained all three. However, many states (such as Kenya, Chile, Greece, Argentina, Austria, Sweden) felt like this was still too lengthy and unnecessary and thus preferred to support the proposal from Liechtenstein as this proposal referred to rule 42 of the Rules of Procedures and Evidence rather than reiterating selected sentences from it. The facilitator received a proposed consensus that will be discussed during the next session.

Following was the adaption of OP12bis and ter as there was no objection to the current form of the revised OP’s, including OP12 quarter to nonies. The substance of these articles was already agreed upon, but the level of appreciation was debated. Ecuador announced that they worked together with Mexico and came to the consensus to use the word ‘welcome’ for these specific OPs and all the other OPs in this section. This was approved by the entire session and thus agreed ad ref. OP18 and 20 were also agreed ad ref without any debate.

Next was OP71bis and 71ter, with regard to which Uganda suggested that the language was not specific enough and questioned why the text no longer mentioned that the oversight of the Bureau will take place on an annual or continuously basis. However, Uganda did not oppose the adoption of this OP and it was thus adopted ad ref.

The most debated OP was OP91bis on the equitable geographic representation within the Bureau as proposed by Brazil. Brazil explained that the number of States Parties have increased significantly over the years but that this is not reflected in the representation of the Bureau and that the time is ripe to address this issue. Brazil was supported by the Latin American states who spoke during this session (the facilitator had to close the floor as too many states wanted to express their opinion.) Many of the European countries such as Slovakia, Bulgaria, Hungary, Czech Republic, Poland, Serbia stated that the time was not ripe, that the Court was facing way more pressing issues such as dealing with universality, legitimacy issue, and the elections of a new prosecutor. Austria called for all states to come together in unity rather than to be divided on this issue and said that in principle they support Brazil’s proposal but that they are flexible in time. Lastly, Brazil clarified that including this OP only serves to open debate and asked if the timing is not right now, then when is it? Even after the informal consultations during the break, a consensus was not reached.

Subsequently, OP91ter was discussed again in relation to OP91ter alt on the duration of the ASP. Belgium expressed its concerns that reducing the ASP to five working days would negatively affect the possibility for the ASP to take decisions which would result in very general consensus seeking processes and thus hinder progressive development. There might also not be enough time to engage with civil societies, observer states, and with the court itself. The other states expressed different concerns: Argentina and Chile expressed concern with the reference to ‘subsidiary bodies’; the Netherlands and Portugal preferred the French alternative to give the Bureau the chance to make a decision on the matter and to not prejudge it already. Slovenia combined all the grievances saying that the other events surrounding the ASP are important with regards to its efficiency, that there is no need to already include ‘subsidiary organs’ and that the outcome needs not to be prejudged. To conclude, there was a lot of support for the amended French proposal. After the break, Brazil announced that together with the French and German delegation an agreement was reached that will be send to the facilitator. 

The next OP on the list was OP 123quater. However, the delegation of the Republic of Korea wanted to reopen the debate on OP104 and proposed a few minor changes in wording. Although this OP104 was already agreed upon in earlier sessions, the issues was addressed. After giving all states the chance to read the amendments, it was agreed, by voice of Austria, that the first two of the three proposed amendments would be accepted. 

Following, OP123quater in relation to the proposal of a mandate under §15 (15b) was discussed. Chile welcomed the great improvement in language but still suggested a few changes. Kenya explained that changes in language were needed. For instance, they suggested to have the words ‘any impact’ removed as they stated that an investigation always has an impact. The UK informed that progress was made during the break and that a final proposal will be communicated in due time.

To conclude, Mandate section number 7 was agreed ad ref without any debate. Mandate section number 19b (on the dates of the next ASP) is still open as the World Forum is already booked in December and the proposed dates in November overlap with a UN meeting. Austria asked the Secretariat to book the World Forum earlier on next times. 

Side Event – “Complementarity and Cooperation Revisited: What role for the ICC in supporting national and hybrid investigations and prosecutions?”

(co-hosted by Luxembourg, the Republic of Korea and Open Society Justice Initiative (OSJI))

Overview by Jill Baehring, Affiliated Expert PILPG NL

Highlights:

• Pascal Turlan, OTP, said he was convinced that the ICC should not be the only actor enforcing international justice, and that the ICC always appreciated being in contact with states requesting  assistance and support for their local prosecutors.

• Christian Ritscher, Special Prosecutor in the War Crimes Unit of the Prosecutor General in Germany, shared how in the case of prosecuting members of the Democratic Forces for the Liberation of Rwanda (FDLR), the German Prosecutors decided together with the OTP to split up the case to avoid double jeopardy.

After opening remarks from the Ambassador of Luxembourg, Mariana Pena from the Open Society Justice Initiative opened the panel by asking the participants to share their “lessons learned” and best practices in interacting with entities of overlapping jurisdiction. 

Responding to this, Christian Ritscher from the War Crimes Unit of the Prosecutor General in Germany shared the circumstances under which it was possible to simultaneously prosecute several individuals involved in the same crimes in front of different institutions of justice. The FDLR’s president and vice president were living in Germany, though they were not personally involved in the genocide committed because of their presence in Germany. At the same time, the Secretary-General of the FDLR lived in France. In an effort of international cooperation, the Prosecutors of Germany and France asked the OTP to split up the case between their entities. Additionally, they sought mutual legal assistance with Rwanda and the Democratic Republic of Congo, which saved each individual party many capacities that benefitted the prosecution as a whole. As a result, Ritscher said, not one witness was interviewed twice and files as well as other information were shared with the ICC’s OTP. Although this meant a delay of the prosecution due to bureaucratic thresholds, Germany saw this cooperation as a great success to be repeated in similar cases such as Syria and investigations in other African countries. 

Sharon Nakandha, Director of the Victim’s Support Initiative in Uganda, congratulated Christian Ritscher for this success. She pointed out that the Domenico Case opened up the possibility of a mutually beneficial relationship with the ICC, where such sharing of resources and capacity may be feasible. However, complementarity was not the only means of capacity building. She insisted that a joint prosecution strategy, sharing of evidence, and other deliberate means were equally important. Each time the ICC cooperated with local prosecution, it had the duty to disseminate their legacy with the lessons learned in the respective country.

This view was shared by Pascal Turlan, OTP. He stated that the ICC should only be one of many actors in the realm of international justice, a standpoint even engraved in the Rome Statute. He emphasized that the ICC encouraged states to seek assistance, as successfully done in Colombia and Guinea. The same was true for states outside the ICC’s territorial jurisdiction over a crime. To strengthen universal jurisdiction, the ICC was actively reaching out to authorities about potential perpetrators on their territory, helping states with all means available to the ICC. He also reiterated the very positive experience of the ICC in working with Germany and France in the case of the FDLR. However, he pointed out that such cooperation was only possible with assurances for witness protection and confidentiality, as well as an assurance that no death penalty would be applied. 

When asked about ad-hoc completion strategies, Fidelma Donlon, Registrar to the Kosovo Specialist Chambers, pointed out that the ICTY and ICTR have developed sophisticated completion strategies in the past that rooted in prosecution of the high-rank leaders in front of the tribunals, and prosecution of mid to low-ranking leaders in front of national courts. The most important component was that there was the possibility of transferring such leaders between the jurisdictions according to Rule 11bis of the ICTY Statute - again provided there were certain assurances in place. She shared that in her experience, creating a ground for such cooperation could take decades, since not every piece of evidence collected in an international trial was admissible due to national jurisdiction and human rights thresholds, and vice versa.  

Pascal Turlan added to this that the ICC was actively trying to establish a mutually beneficial relationship with states, and that discussions were always held with national authorities before formally submitting a cooperation request. To this, Sharon Nakandha added that it was her aspiration to establish a system of co-existence with international courts allowing exchange of information and resource sharing. The Malabo protocol envisioning cooperation with international courts in general, not specifically the ICC, was a good first step.